November 18, 2008

Carter notices comments by Andrew Pincus, former general counsel of the Commerce Department under Clinton, at a recent AEI conference on business and the Supreme Court:

I know in some quarters it's heresy to talk about comparing our judicial system with the rest of the world, but in fact, if you represent ....foreign clients, and you say to them, well, you've just been sued, and now you have to spend some money to file a motion to dismiss. And, by the way, the way that gets decided is that the judge assumes that everything in the complaint is true, even though you know of course that many of the things are totally preposterous.

And if that's denied, you have to spend $1 million -- with electronic discovery, maybe $10 million, $100 million - defending yourself, which you have no chance of getting back, even if at the end of the day you're quite confident you're entirely innocent, not liable, under whatever the claim is. In most countries of the world, that's sort of craziness, but that's the system we have.